Over the years as a divorce and child custody attorney, I have often explained to folks that a vast majority of cases result in “Joint Legal Custody.” In summary, this means that the parents are “equal” when it comes to important decision regarding the child. The lawyers at my law firm typically deal with matters regarding the education or, god forbid a medical emergency. Another “hot topic” that many co-parenting people face regarding the religious upbringing of their children. In light of the highly sensitive nature when it comes to religious beliefs, many parents, post-divorce (or post-relationship wherein child custody became an issue) issues regarding religious schooling come into play.
In that vein, I have been asked whether a parent can prevent his or her child from enrolling in a religious school. The recent New Jersey Appellate Division case of Phillips v. Emerson addressed this very issue.
In the case the parties divorced in November 2002. Four children were born of the marriage between 1995 and 1999. Upon the parties divorce they entered into a settlement agreement. Pursuant to the agreement, the parties were to share joint legal custody of their four children, while the mother was the primary residential parent. Furthermore, throughout the course of the marriage, neither the parties nor their children actively practiced their respective religions. The husband had been raised Jewish and the mother raised Catholic. However, upon the divorce the parties also agreed that the father would have parenting time with the kids on four specific Jewish holidays per year. Similarly, the mother was granted parenting time on three specific Catholic holidays. Yet, beyond that agreement, the parties made no plans to enroll their children in religious schools.
In 2012, the mother remarried. Her new husband was a strict Catholic so she began to regularly attend Church with him and the children. In August of the same year, the mother decided to enroll the one of the daughter’s in Catholic High School. Although the parties did not discuss the possibility of Catholic School with one another, the daughter told her father than she wanted to enroll in the school. However, he opposed the decision because he viewed his ex’s “decision to send the child to Catholic school as part of a larger campaign to convert all of the children to Catholicism and to further separate the children from their father.”
Before school began in September 2012, the father filed a motion to bar his daughter’s enrollment in the Catholic School. Additionally, he stated that if his ex had already enrolled the daughter, he wanted the court to “un-enroll her immediately.” As a response, the mother submitted an email conversation that the daughter had with her father about the school in April 2012.
In the email, the daughter acknowledged that her father might not like the fact that she wanted to attend a Catholic School; however, she stressed to him that it was her decision and that she was not influenced by her mother’s recent observance of the religion. Furthermore, the daughter wrote that she thought she would perform better at the Catholic School because she did not like all of the bullies in public school. In response to his daughter, the father wrote in his email that he “was sure the Catholic School was fine” but he simply opposed the idea of religious based schools in the first place. Furthermore, he wrote that had he known that Catholicism was important to his ex, he would have never married her in the first place.
After considering the testimony of both parties, the trial court denied the father’s motion. The court held that the daughter’s email suggested that she chose, on her own, to attend Catholic School for persuasive reasons. In particular, the court supported the daughter’s decision because “she’s going to get a good education in a place where she’s comfortable, and if she elects to develop a Catholic faith in that regard, fine.” However, the father appealed.
On appeal, the father argued that the trial court erred in endorsing his daughter’s decision to enroll in Catholic School. The Appellate Division stated that, most importantly, the daughter’s best interests must be taken into consideration. Yet, since the parties had joint legal custody of their daughter, they were both entitled to give input regarding major decisions associated with the daughter. Quoting the case of Asch v. Asch, “selecting a child’s school and exposing the child to a particular faith community are major decisions.” Therefore, the Appellate Division believed that the lower court erred in not considering what the father had to say.
As a result, the Appellate Division reversed the findings of the trial court and remanded the case for further proceedings. On remand, the Appellate Division advised the lower court to order a trial as to the disputed material facts regarding the daughter and whether attending Catholic School was truly in her best interests.
If you or a loved one is facing this type of issue, please never hesitate to contact my office to learn how my divorce and family law firm may help you.